Andrew Albright: “Opportunities for IE Reform in California Law in a Post-Citizens United World”

The following is a guest post from Andrew Albright:

In Citizens United, as we all know, the Supreme Court held that independent expenditures (IEs) cannot be a source of quid pro quo corruption so long as the persons or entities publishing the IEs spend their dollars independent of, or absent coordination with, the candidates the IEs support. This logic leaves one primary form of IE regulation largely untouched, and possibly available for strengthening: coordination laws.

Coordination laws govern the relationships between, and put limitations on, candidates and third-party entities that make IEs in support of those candidates. States across the country, as well as the Federal Elections Commission, have enacted coordination laws of varying strength.

In a new report I have authored for California Common Cause, “All Hope Is Not Lost: Effectively Regulating Independent Expenditures in a Post-Citizens United World,” I document the amount and nature of IEs in California politics, and examine the legal doctrine and public policy around coordination laws, in California, other states, and federally. The report seeks to understand best-in-field practices, identify where California falls short, and propose improvements to California’s coordination laws. The report publishes today.

“All Hope Is Not Lost” finds that, contrary to the cynicism and defeatism that has quite naturally become the norm around IEs, there may actually be some room for progress. I recommend that California take three steps to strengthen its coordination laws. First, the state can broaden its definition of “communication” under the Political Reform Act. Today, political committees can avoid direct contribution limits by airing unlimited advertisements that do not expressly call for the candidate’s election or defeat but nevertheless indirectly advocate for the candidate. Broadening the definition of “communication” would extend California’s coordination laws to cover any and all political advertisements – including so-called “issue advocacy” – that mention or depict a candidate within sixty days of an election. Maine and New York State already apply some version of this approach.

Second, California can strengthen its definition of “coordination” and afford those accused of coordination fewer opportunities to make bad faith but ultimately successful rebuttals of clear evidence of coordination. Today, California uses a series of “rebuttable presumptions” that allow the Fair Political Practices Commission (FPPC) to presume that an IE was actually a coordinated expenditure. For example, where a candidate’s spouse works for a supporting political committee, the FPPC presumes coordination. But these presumptions allow a candidate to rebut the allegation; such rebuttals often go uninvestigated and have become a weakness that has undermined effective enforcement of California’s coordination laws. In states like New York, policymakers have taken rebuttable presumptions and turned them into per se coordination scenarios, thus barring candidates from rebutting the presumption of coordination. This approach would streamline California’s laws and make FPPC regulations significantly easier to enforce.

The final opportunity for reform lies slightly outside of coordination laws. California should consider barring “general purpose” and “primarily formed” committees from making IEs. The distinction between general purpose and primarily formed committees arguably serves an important purpose. Many general purpose committees are not focused on specific elections, and instead focus on issues. Thus, applying the more onerous filing and naming requirements of primarily formed committees to general purpose committees could deter some non-election speech.

At the same time, the distinction between general purpose and primarily formed committees creates loopholes that may undermine the State’s campaign finance regulations, which the report highlights in detail. For example, in 2020, a local Santa Rosa political committee raised $500,000 from a single donor and used it in opposition to a local ballot measure. But because it was registered as “general purpose,” despite operating as “primarily formed,” the committee did not have to disclose their funders in a timely manner. Indeed, the committee only disclosed its donors and refiled as a “primarily formed” committee after a concerned citizen filed a complaint with the FPPC.

Other problems exist with allowing the same committees to make both direct contributions and IEs. Under current California law, a political committee staffer could engage a campaign in detailed conversations regarding content and strategy around a specific communication, as long as the cost of that communication is below the limit for direct contributions. Then, a different staffer of the same committee could go on to make unlimited, “uncoordinated” independent expenditures on that campaign’s behalf. This is one of many opportunities for wink-and-nod coordination that California law currently permits.

In line with states like New York and Connecticut, California can prohibit general purpose and primarily formed committees from making IEs and instead create an “independent expenditure only” committee that can make IEs on behalf of candidates, but not direct contributions to them. The upshot of this approach is that, by treating all IEs the same, it removes incentives for political spenders to exploit arcane committee classification rules to engage in coordination and evade regulations. And it eliminates some of the most obvious opportunities for wink-and-nod coordination.

Though Citizens United took many excellent policies and reform off the table, from the perspective of good government reformers, states like California can still strengthen their coordination laws to ensure that politicians cannot use third-party organizations to artfully skirt direct contribution limits. Building a stronger wall between direct contributions and IEs will help California close loopholes and strengthen enforcement of its direct contribution limits. All hope is not lost.

Andrew Albright is a joint J.D. and Master of Public Policy Candidate at the University of California, Berkeley. After graduating in May of 2024, he will spend a year working as a law clerk at the United States District Court for the Northern District of California, followed by a year working as a law clerk at the United States Court of Appeals for the Ninth Circuit. Andrew completed this report on behalf of Common Cause as his Master’s capstone at the Goldman School of Public Policy.

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